exv10w1











    EXHIBIT
10.1



 




    DELTA
    PETROLEUM CORPORATION

    



 




    2009
    PERFORMANCE AND EQUITY INCENTIVE PLAN



 



    1. Purpose of the Plan



 



    The purpose of this Delta Petroleum Corporation 2009 Performance
    and Equity Incentive Plan is provide incentives to selected
    employees and directors of the Company and its Subsidiaries, and
    selected non-employee consultants and advisors to the Company
    and its Subsidiaries, who contribute, and are expected to
    contribute to the Company’s success and to create
    stockholder value.



 



    2. Definitions



 



    As used in the Plan, the following definitions apply to the
    terms indicated below:



 



    (a) “Affiliate” means any parent
    corporation or subsidiary corporation of the Company, whether
    now or hereafter existing, as those terms are defined in
    Sections 424(e) and (f), respectively, of the Code.



 



    (b) “Award Agreement” shall mean
    any written agreement between the Company and a Participant
    evidencing the grant, and other terms and conditions of an
    award, which shall be, in each case, as determined by the
    Committee and subject to the terms and conditions of the Plan.



 



    (c) “Board” shall mean the Board of
    Directors of the Company.



 



    (d) “Cash Bonus” shall mean an
    award of a bonus payable in cash pursuant to Section 13
    hereof.



 



    (e) “Change in Control” means the
    occurrence, in a single transaction or in a series of related
    transactions, of any one or more of the following events:



 



    (i) any Exchange Act Person other than an entity owned or
    controlled by Kirk Kerkorian becomes the owner, directly or
    indirectly, of securities of the Company representing more than
    forty percent (40%) of the combined voting power of the
    Company’s then outstanding securities other than by virtue
    of a merger, consolidation or similar transaction;



 



    (ii) there is consummated a merger, consolidation or
    similar transaction involving (directly or indirectly) the
    Company and, immediately after the consummation of such merger,
    consolidation or similar transaction, the stockholders of the
    Company immediately prior thereto do not own, directly or
    indirectly, either (A) outstanding voting securities
    representing more than fifty percent (50%) of the combined
    outstanding voting power of the surviving Entity in such merger,
    consolidation or similar transaction or (B) more than fifty
    percent (50%) of the combined outstanding voting power of the
    parent of the surviving entity in such merger, consolidation or
    similar transaction, in each case in substantially the same
    proportions as their ownership of the outstanding voting
    securities of the Company immediately prior to such transaction;



 



    (iii) the stockholders of the Company approve or the Board
    approves a plan of complete dissolution or liquidation of the
    Company, or a complete dissolution or liquidation of the Company
    shall otherwise occur;



 



    (iv) there is consummated a sale, lease, license or other
    disposition of all or substantially all of the consolidated
    assets of the Company and its Subsidiaries, other than a sale,
    lease, license or other disposition of all or substantially all
    of the consolidated assets of the Company and its Subsidiaries
    to an Entity, more than fifty percent (50%) of the combined
    voting power of the voting securities of which are owned by
    stockholders of the Company in substantially the same
    proportions as their ownership of the outstanding voting
    securities of the Company immediately prior to such sale, lease,
    license or other disposition; or



 



    (v) individuals who, on the date this Plan is adopted by
    the Board, are members of the Board (the “Incumbent
    Board”) cease for any reason to constitute at least a
    majority of the members of the Board;






    










 








    provided, however, that any new Board member shall, for purposes
    of this Plan, be considered as a member of the Incumbent Board
    if the appointment or election (or nomination for election) of
    such new Board member was approved or recommended by at least
    fifty percent (50%) of the members of the Incumbent Board,
    provided that the members of the Incumbent Board, at the time of
    such election or nomination, constitute a majority of the Board.



 



    The term “Change in Control” shall not include
    a sale of assets, merger or other transaction effected
    exclusively for the purpose of changing the domicile of the
    Company. Notwithstanding the foregoing or any other provision of
    this Plan, the definition of Change in Control (or any analogous
    term) in an Award Agreement shall supersede the foregoing
    definition with respect to awards subject to such Award
    Agreement (it being understood, however, that if no definition
    of Change in Control or any analogous term is set forth in such
    Award Agreement, the foregoing definition shall apply).



 



    (f) “Code” shall mean the Internal
    Revenue Code of 1986, as amended from time to time.



 



    (g) “Committee” shall mean the
    compensation committee of the Company’s Board or another
    committee of the Board comprised solely of one or more directors
    or such number of directors as may be required by applicable law.



 



    (h) “Common Shares” shall mean
    shares of the Company’s common stock, $.01 par value
    per share.



 



    (i) “Company” shall mean Delta
    Petroleum Corporation, a Delaware corporation.



 



    (j) “Eligible Person” means any
    person who is either: (i) an officer (whether or not a
    director) or employee of the Company or one of its Subsidiaries;
    (ii) a director of the Company or one of its Subsidiaries;
    or (iii) an individual consultant or advisor who renders or
    has rendered bona fide services to the Company or one of its
    Subsidiaries and who is selected to participate in this Plan by
    the Committee; provided, however, that a person who is otherwise
    an Eligible Person under clause (iii) above may participate
    in this Plan only if such participation would not adversely
    affect either the Company’s eligibility to use
    Form S-8
    to register under the Securities Act, the offering and sale of
    shares issuable under this Plan by the Company or the
    Company’s compliance with any other applicable laws.



 



    (k) “Exchange Act” shall mean the
    Securities Exchange Act of 1934, as amended.



 



    (l) “Exchange Act Person” means any
    natural person, Entity or “group” (within the meaning
    of Section 13(d) or 14(d) of the Exchange Act), except that
    “Exchange Act Person” shall not include (i) the
    Company or any Subsidiary of the Company, (ii) any employee
    benefit plan of the Company or any Subsidiary of the Company or
    any trustee or other fiduciary holding securities under an
    employee benefit plan of the Company or any Subsidiary of the
    Company, (iii) an underwriter temporarily holding
    securities pursuant to an offering of such securities, or
    (iv) an entity owned, directly or indirectly, by the
    stockholders of the Company in substantially the same
    proportions as their ownership of stock of the Company.



 



    (m) “Fair Market Value” means, as
    of any date, unless otherwise determined or provided by the
    Committee in the circumstances, the last sale price for a Common
    Share as furnished by the NASDAQ Global Select Market
    (“NASDAQ”) or other principal stock exchange on
    which the Company’s Common Shares are then listed for the
    date in question or, if no sales of Common Shares were reported
    by NASDAQ or other such exchange on that date, the last price
    for a Common Share as furnished by the NASDAQ or other such
    exchange for the next preceding day on which sales of Common
    Shares were reported by NASDAQ. If the Common Shares are no
    longer listed or is no longer actively traded on NASDAQ or
    listed on a principal stock exchange as of the applicable date,
    the Fair Market Value of the Common Shares shall be the value as
    reasonably determined by the Committee for purposes of the award
    in the circumstances.



 



    (n) “Incentive Stock Option” shall
    mean an Option which is an “incentive stock option”
    within the meaning of Section 422 of the Code and which is
    identified as an Incentive Stock Option in the applicable Award
    Agreement.



 



    (o) “Issue Date” shall mean the
    date established by the Committee on which certificates
    representing Common Shares shall be issued by the Company.





    

2








 







    (p) “Non-Qualified Stock Option”
    shall mean an Option which is not an Incentive Stock Option and
    which is identified as a Non-Qualified Stock Option in the
    applicable Award Agreement.



 



    (q) “Option” shall mean an option
    to purchase a certain number of Common Shares during a specified
    period as determined by the Committee granted pursuant to
    Section 7 of this Plan. Each Option shall be identified as
    either an Incentive Stock Option or a Non-Qualified Stock Option
    in the applicable Award Agreement.



 



    (r) “Participant” shall mean a
    person who is eligible to participate in the Plan and to whom an
    award has been granted pursuant to this Plan.



 



    (s) “Person” shall mean a
    “person,” as such term is used in Sections 13(d)
    and 14(d) of the Exchange Act.



 



    (t) “Phantom Stock” shall mean the
    right to receive in cash the Fair Market Value of Common Shares,
    which right is granted pursuant to Section 11 of this Plan
    and subject to the terms and conditions contained therein.



 



    (u) “Plan” shall mean the Delta
    Petroleum Corporation 2009 Performance and Equity Incentive
    Plan, as it may be amended from time to time.



 



    (v) “Restricted Stock” shall mean a
    Common Share granted pursuant to Section 9 of this Plan and
    subject to certain restrictions set forth in this Plan and in
    the applicable Award Agreement.



 



    (w) “RSU” shall mean a restricted
    stock unit, which represents the right to receive from the
    Company on the respective scheduled vesting or payment date, one
    Common Share granted pursuant to Section 10 hereof.



 



    (x) “SAR” shall mean a stock
    appreciation right granted pursuant to Section 8 of this
    Plan.



 



    (y) “Securities Act” shall mean the
    Securities Act of 1933, as amended.



 



    (z) “Stock Bonus” shall mean a
    grant of a bonus payable in Common Shares pursuant to
    Section 12 of this Plan



 



    (aa) “Subsidiary” shall mean any
    entity which, at the time of reference, the Company owns
    directly or indirectly, stock or other equity comprising more
    than forty percent of the total combined voting power of all
    classes of stock or equity of such entity.



 



    (bb) “Vesting Date” shall mean the
    date established by the Committee on which an award, such as a
    share of Restricted Stock or Phantom Stock, may vest.



 



    3. Common Shares Subject to the Plan.



 



    (a) Shares Available.  Subject
    to the provisions of Section 16(a), the capital stock that
    may be delivered under this Plan shall be authorized but
    unissued Common Shares and any Common Shares held as treasury
    shares.



 



    (b) Share Limits.  The maximum
    number of Common Shares that may be delivered pursuant to awards
    granted to Eligible Persons under this Plan shall be 30,000,000
    (the “Share Limit”). The following limits also
    apply with respect to awards granted under this Plan:



 



    (1) The maximum number of Common Shares that may by
    delivered pursuant to Options qualified as Incentive Stock
    Options granted under this Plan is 30,000,000 shares.



 



    (2) The maximum number of Common Shares subject to any
    Options and SARs that are granted during any calendar year to
    any individual under this Plan is 1,000,000 shares.



 



    (3) Additional limits with respect to Performance-Based
    Awards are set forth in Section 6(b)(3).



 



    Each of the foregoing numerical limits is subject to adjustment
    as contemplated by Section 3(c), Section 16(a) and
    Section 25.



 



    (c) Awards Settled in Cash, Reissue of Awards and
    Shares.  To the extent that an award is
    settled in cash or a form other than Common Shares, the shares
    that would have been delivered had there been no such cash or
    other






    

    3








 







    settlement shall not be counted against the shares available for
    issuance under this Plan. Shares that are subject to or underlie
    awards which expire or for any reason are cancelled or
    terminated, are forfeited, fail to vest, or for any other reason
    are not paid or delivered under this Plan shall again be
    available for subsequent awards under this Plan. The foregoing
    adjustments to the share limits of this Plan are subject to any
    applicable limitations under Section 162(m) of the Code
    with respect to awards intended as performance-based
    compensation thereunder.



 



    (d) Reservation of Shares; No Fractional Shares;
    Minimum Issue.  The Company shall at all times
    reserve a number of Common Shares sufficient to cover the
    Company’s obligations and contingent obligations to deliver
    shares with respect to awards then outstanding under this Plan
    (exclusive of any dividend equivalent obligations to the extent
    the Company has the right to settle such rights in cash). No
    fractional shares shall be delivered under this Plan. The
    Committee may pay cash in lieu of any fractional shares in
    settlements of awards under this Plan.



 



    4. Administration of the Plan.



 



    (a) The Plan shall be administered by the Committee. With
    respect to awards intended to satisfy the requirements for
    performance-based compensation under Section 162(m) of the
    Code, this Plan shall be administered by a committee consisting
    solely of two or more outside directors (as this requirement is
    applied under Section 162(m) of the Code); provided,
    however, that the failure to satisfy such requirement shall not
    affect the validity of the action of any committee otherwise
    duly authorized and acting in the matter. Award grants, and
    transactions in or involving awards, intended to be exempt under
    Rule 16b-3
    under the Exchange Act, must be duly and timely authorized by
    the Board or a committee consisting solely of two or more
    non-employee directors (as this requirement is applied under
    Rule 16b-3
    promulgated under the Exchange Act). To the extent required by
    any applicable listing agency, this Plan shall be administered
    by a committee composed entirely of independent directors
    (within the meaning of the applicable listing agency). Awards
    granted to non-employee directors shall not be subject to the
    discretion of any officer or employee of the Company and shall
    be administered exclusively by a committee consisting solely of
    independent directors.



 



    (b) Powers of the
    Committee.  Subject to the express provisions
    of this Plan, the Committee is authorized and empowered to do
    all things necessary or desirable in connection with the
    authorization of awards and the administration of this Plan (in
    the case of a committee or delegation to one or more officers,
    within the authority delegated to that committee or person(s)),
    including, without limitation, the authority to:



 



    (1) determine eligibility and, from among those persons
    determined to be eligible, the particular Eligible Persons who
    will receive an award under this Plan;



 



    (2) grant awards to Eligible Persons, determine the price
    at which securities will be offered or awarded and the number of
    securities to be offered or awarded to any of such persons,
    determine the other specific terms and conditions of such awards
    consistent with the express limits of this Plan, establish the
    installments (if any) in which such awards shall become
    exercisable or shall vest (which may include, without
    limitation, performance
    and/or
    time-based schedules), or determine that no delayed
    exercisability or vesting is required, establish any applicable
    performance targets, and establish the events of termination or
    reversion of such awards;



 



    (3) approve the forms of Award Agreements (which need not
    be identical either as to type of award or among Participants);



 



    (4) construe and interpret this Plan and any agreements
    defining the rights and obligations of the Company, its
    Subsidiaries, and Participants under this Plan, further define
    the terms used in this Plan, and prescribe, amend and rescind
    rules and regulations relating to the administration of this
    Plan or the awards granted under this Plan;



 



    (5) cancel, modify, or waive the Company’s rights with
    respect to, or modify, discontinue, suspend, or terminate any or
    all outstanding awards, subject to any required consent under
    Section 23(e);



 



    (6) accelerate or extend the vesting or exercisability or
    extend the term of any or all such outstanding awards (in the
    case of Options or SARs, within the maximum ten-year term of
    such awards) in such circumstances as the Committee may deem
    appropriate (including, without limitation, in connection with a






    

    4








 







    termination of employment or services or other events of a
    personal nature) subject to any required consent under
    Section 23(e);



 



    (7) adjust the number of Common Shares subject to any
    award, adjust the price of any or all outstanding awards or
    otherwise change previously imposed terms and conditions, in
    such circumstances as the Committee may deem appropriate, in
    each case subject to Sections 3, 16 and 23 and the
    applicable requirements of Code Section 162(m) and Treasury
    Regulations thereunder with respect to awards that are intended
    to satisfy the requirements for performance-based compensation
    under Section 162(m), and provided that in no case (except
    due to an adjustment contemplated by Section 16 or any
    repricing that may be approved by stockholders) shall such an
    adjustment constitute a repricing (by amendment, cancellation
    and regrant, exchange or other means) of the per share exercise
    or base price of any award, and further provided that any
    adjustment or change in terms made pursuant to this
    Section 4(b)(7) shall be made in a manner that, in the good
    faith determination of the Committee will not likely result in
    the imposition of additional taxes or interest under
    Section 409A of the Code;



 



    (8) determine the date of grant of an award, which may be a
    designated date after but not before the date of the
    Committee’s action (unless otherwise designated by the
    Committee, the date of grant of an award shall be the date upon
    which the Committee took the action granting an award);



 



    (9) determine whether, and the extent to which, adjustments
    are required pursuant to Section 14 hereof and authorize
    the termination, conversion, substitution or succession of
    awards upon the occurrence of an event of the type described in
    Section 16;



 



    (10) acquire or settle (subject to Sections 6(e), 16
    and 23) rights under awards in cash, stock of equivalent
    value, or other consideration; and



 



    (11) determine the Fair Market Value of the Common Shares
    or awards under this Plan from time to time
    and/or the
    manner in which such value will be determined.



 



    (c) Binding Determinations.  Any
    action taken by, or inaction of, the Company, any Subsidiary, or
    the Committee relating or pursuant to this Plan and within its
    authority hereunder or under applicable law shall be within the
    absolute discretion of that entity or body and shall be
    conclusive and binding upon all persons. Neither the Board nor
    the Committee, nor any member thereof or person acting at the
    direction thereof, shall be liable for any act, omission,
    interpretation, construction or determination made in good faith
    in connection with this Plan (or any award made under this
    Plan), and all such persons shall be entitled to indemnification
    and reimbursement by the Company in respect of any claim, loss,
    damage or expense (including, without limitation,
    attorneys’ fees) arising or resulting therefrom to the
    fullest extent permitted by law
    and/or under
    any directors and officers liability insurance coverage that may
    be in effect from time to time.



 



    (d) Reliance on Experts.  In making
    any determination or in taking or not taking any action under
    this Plan, the Board or a committee, as the case may be, may
    obtain and may rely upon the advice of experts, including
    employees and professional advisors to the Company. No director,
    officer or agent of the Company or any of its Subsidiaries shall
    be liable for any such action or determination taken or made or
    omitted in good faith.



 



    (e) Delegation.  The Committee may
    delegate ministerial, non-discretionary functions to individuals
    who are officers or employees of the Company or any of its
    Subsidiaries or to third parties.



 



    5. Eligibility.  The Committee may
    grant awards under this Plan only to those persons that the
    Committee determines to be Eligible Persons. An Eligible Person
    who has been granted an award may, if otherwise eligible, be
    granted additional awards if the Committee shall so determine.



 



    6. Awards.



 



    (a) Types and Form of Awards.  The
    Committee shall determine the type or types of award(s) to be
    made to each selected Eligible Person. Awards may be granted
    singly, in combination or in tandem. Awards also may be made in
    combination or in tandem with, in replacement of, as
    alternatives to, or as the payment form for grants or rights
    under any other employee or compensation plan of the Company or
    one of its Subsidiaries. The types of awards that the Committee
    may grant to Eligible Persons under this Plan include:
    (i) Options, including Incentive






    

    5








 







    Stock Options and Non-Qualified Stock Options, (ii) SARs,
    (iii) Restricted Stock, (iv) RSUs, (v) Phantom
    Stock, (vi) Stock Bonuses, (vii) performance stock,
    dividend equivalents, or similar rights to purchase or acquire
    Common Shares, whether at a fixed or variable price or ratio
    related to the Common Shares, upon the passage of time, the
    occurrence of one or more events, or the satisfaction of
    performance criteria or other conditions, or any combination
    thereof, (viii) any similar securities with a value derived
    from the value of or related to the Common Shares
    and/or
    returns thereon; (ix) Cash Bonuses.



 



    (b) Section 162(m) Performance-Based
    Awards.  Without limiting the generality of
    the foregoing, any of the types of awards listed in
    Sections 6(a)(iii) through 6(a)(viii) above may be, and
    Options and SARs granted with an exercise or base price not less
    than the Fair Market Value of a Common Share at the date of
    grant (“Qualifying Options” and
    “Qualifying SARs,” respectively) typically will
    be, granted as awards intended to satisfy the requirements for
    “performance-based compensation” within the meaning of
    Section 162(m) of the Code (“Performance-Based
    Awards”). The grant, vesting, exercisability or payment
    of Performance-Based Awards may depend (or, in the case of
    Qualifying Options or Qualifying SARs, may also depend) on the
    degree of achievement of one or more performance goals relative
    to a pre-established targeted level or levels using the Business
    Criteria provided for below for the Company on a consolidated
    basis or for one or more of the Company’s Subsidiaries,
    segments, divisions or business units, or any combination of the
    foregoing. Such criteria may be evaluated on an absolute basis
    or relative to prior periods, industry peers, or stock market
    indices. Any Qualifying Option or Qualifying SAR shall be
    subject to the requirements of Section 6(b)(1) and 6(b)(3)
    in order for such award to satisfy the requirements for
    “performance-based compensation” under
    Section 162(m) of the Code. Any other Performance-Based
    Award shall be subject to all of the following provisions of
    this Section 6(b).



 



    (1) Class; Committee.  The eligible
    class of persons for Performance-Based Awards under this
    Section 6(b) shall be officers and employees of the Company
    or one of its Subsidiaries. The Committee approving
    Performance-Based Awards or making any certification required
    pursuant to Section 6(b)(4) must be constituted as provided
    in Section 4(a) for awards that are intended as
    performance-based compensation under Section 162(m) of the
    Code.



 



    (2) Performance Goals.  The
    specific performance goals for Performance-Based Awards (other
    than Qualifying Options and Qualifying SARs) shall be, on an
    absolute or relative basis, established based on such business
    criteria as selected by the Committee in its sole discretion
    (“Business Criteria”), including the following:
    earnings per share, cash flow (which means cash and cash
    equivalents derived from either net cash flow from operations or
    net cash flow from operations, financing and investing
    activities), total stockholder return, gross revenue, revenue
    growth, operating income (before or after taxes), net earnings
    (before or after interest, taxes, depreciation
    and/or
    amortization), return on equity, capital employed, or on assets
    or on net investment, cost containment or reduction, operating
    margin, debt reduction, finding and development costs,
    production growth or production growth per share, reserve
    replacement or reserves per share growth or any combination
    thereof. These terms are used as applied under generally
    accepted accounting principles or in the financial reporting of
    the Company or of its Subsidiaries. To qualify awards as
    performance-based under Section 162(m), the applicable
    Business Criterion (or Business Criteria, as the case may be)
    and specific performance goal or goals (“targets”)
    must be established and approved by the Committee during the
    first 90 days of the performance period (and, in the case
    of performance periods of less than one year, in no event after
    25% or more of the performance period has elapsed) and while
    performance relating to such target(s) remains substantially
    uncertain within the meaning of Section 162(m) of the Code.
    Performance targets shall be adjusted to mitigate the unbudgeted
    impact of material, unusual or nonrecurring gains and losses,
    accounting changes or other extraordinary events not foreseen at
    the time the targets were set unless the Committee provides
    otherwise at the time of establishing the targets; provided that
    the Committee may not make any adjustment to the extent it would
    adversely affect the qualification of any compensation payable
    under such performance targets as “performance-based
    compensation” under Section 162(m). The applicable
    performance measurement period may not be less than
    3 months nor more than 10 years.



 



    (3) Form of Payment; Maximum Performance-Based
    Award.  Grants or awards under this
    Section 6(b) may be paid in cash or Common Shares or any
    combination thereof. Grants of Qualifying Options and Qualifying
    SARs to any one Participant in any one calendar year shall be
    subject to the limit set forth in Section 3(b)(2). The
    maximum number of Common Shares which may be delivered pursuant
    to Performance-






    

    6








 







    Based Awards (other than Qualifying Options and Qualifying SARS)
    to any one Participant in any one calendar year shall not exceed
    1,000,000 shares, either individually or in the aggregate,
    subject to adjustment as provided in Section 14(a). In
    addition, the aggregate amount of cash compensation to be paid
    to any one Participant in respect of all Performance-Based
    Awards in any one calendar year shall not exceed $1,500,000.
    Awards that are cancelled during the year shall be counted
    against these limits to the extent required by
    Section 162(m) of the Code.



 



    (4) Certification of
    Payment.  Before any Performance-Based Award
    under this Section 6(b) (other than Qualifying Options and
    Qualifying SARs) is paid and to the extent required to qualify
    the award as performance-based compensation within the meaning
    of Section 162(m) of the Code, the Committee must certify
    in writing that the performance target(s) and any other material
    terms of the Performance-Based Award were in fact timely
    satisfied.



 



    (5) Reservation of Discretion.  The
    Committee will have the discretion to determine the restrictions
    or other limitations of the individual awards granted under this
    Section 6(b) including the authority to reduce awards,
    payouts or vesting or to pay no awards, in its sole discretion,
    if the Committee preserves such authority at the time of grant
    by language to this effect in its authorizing resolutions or
    otherwise.



 



    (6) Expiration of Grant
    Authority.  As required pursuant to
    Section 162(m) of the Code and the regulations promulgated
    thereunder, the Committee’s authority to grant new awards
    that are intended to qualify as performance-based compensation
    within the meaning of Section 162(m) of the Code (other
    than Qualifying Options and Qualifying SARs) shall terminate
    upon the first meeting of the Company’s stockholders that
    occurs in the fifth year following the year in which the
    Company’s stockholders first approve this Plan.



 



    (c) Award Agreements.  Each award
    shall be evidenced by a written or electronic Award Agreement in
    the form approved by the Committee and, if required by the
    Committee, executed by the recipient of the award. The Committee
    may authorize any officer of the Company (other than the
    particular award recipient) to execute any or all Award
    Agreements on behalf of the Company (electronically or
    otherwise). The Award Agreement shall set forth the material
    terms and conditions of the award as established by the
    Committee consistent with the express limitations of this Plan.



 



    (d) Deferrals and
    Settlements.  Payment of awards may be in the
    form of cash, Common Shares, other awards or combinations
    thereof as the Committee shall determine, and with such
    restrictions as it may impose. The Committee may also require or
    permit Participants to elect to defer the issuance of shares or
    the settlement of awards in cash under such rules and procedures
    as it may establish under this Plan. The Committee may also
    provide that deferred settlements include the payment or
    crediting of interest or other earnings on the deferral amounts,
    or the payment or crediting of dividend equivalents where the
    deferred amounts are denominated in shares.



 



    (e) Consideration for Common Shares or
    Awards.  The purchase price for any award
    granted under this Plan or the Common Shares to be delivered
    pursuant to an award, as applicable, may be paid by means of any
    lawful consideration as determined by the Committee, including,
    without limitation, one or a combination of the following
    methods:



 


			
	 	    • 
	
    services rendered by the recipient of such award, if authorized
    by the Committee;

	 
	 	    • 
	
    cash, check payable to the order of the Company, or electronic
    funds transfer;

	 
	 	    • 
	
    notice and third party payment in such manner as may be
    authorized by the Committee;

	 
	 	    • 
	
    the delivery of previously owned Common Shares;

	 
	 	    • 
	
    by a reduction in the number of shares otherwise deliverable
    pursuant to the award; or

	 
	 	    • 
	
    subject to such procedures as the Committee may adopt, pursuant
    to a “cashless exercise” with a third party who
    provides financing for the purposes of (or who otherwise
    facilitates) the purchase or exercise of awards.




 



    In the event that the Committee allows a Participant to exercise
    an award by delivering Common Shares previously owned by such
    Participant and unless otherwise expressly provided by the
    Committee, any shares






    
7








 







    delivered which were initially acquired by the Participant from
    the Company (upon exercise of an Option or otherwise) must have
    been owned by the Participant at least six months as of the date
    of delivery. Common Shares used to satisfy the exercise price of
    an Option shall be valued at their Fair Market Value on the date
    of exercise. The Company will not be obligated to deliver any
    shares unless and until it receives full payment of the exercise
    or purchase price therefor and any related withholding
    obligations under Section 18 and any other conditions to
    exercise or purchase, as established from time to time by the
    Committee, have been satisfied. Unless otherwise expressly
    provided in the applicable Award Agreement, the Committee may at
    any time eliminate or limit a Participant’s ability to pay
    the purchase or exercise price of any award or shares by any
    method other than cash payment to the Company.



 



    (f) Transfer Restrictions.



 



    (1) Limitations on Exercise and
    Transfer.  Unless otherwise expressly provided
    in (or pursuant to) this Section 6(f), by applicable law
    and by the Award Agreement, as the same may be amended,
    (a) all awards are non-transferable and shall not be
    subject in any manner to sale, transfer, anticipation,
    alienation, assignment, pledge, encumbrance or charge;
    (b) awards shall be exercised during the life of the
    Participant only by the Participant; and (c) amounts
    payable or shares issuable pursuant to any award shall be
    delivered only to (or for the account of) the Participant.



 



    (2) Exceptions.  The Committee may
    permit awards to be exercised by and paid to, or otherwise
    transferred to, other persons or entities pursuant to such
    conditions and procedures, including limitations on subsequent
    transfers, as the Committee may, in its sole discretion,
    establish in writing (provided that any such transfers of
    Incentive Stock Options shall be limited to the extent permitted
    under the federal tax laws governing Incentive Stock Options).
    Any permitted transfer shall be subject to compliance with
    applicable federal and state securities laws.



 



    (3) Further Exceptions to Limits on
    Transfer.  The exercise and transfer
    restrictions in Section 6(f)(1) shall not apply to:



 



    (A) transfers to the Company,



 



    (B) the designation of a beneficiary to receive benefits in
    the event of the Participant’s death or, if the Participant
    has died, transfers to or exercise by the Participant’s
    beneficiary, or, in the absence of a validly designated
    beneficiary, transfers by will or the laws of descent and
    distribution,



 



    (C) subject to any applicable limitations on Incentive
    Stock Options, transfers to a family member (or former family
    member) pursuant to a domestic relations order if approved or
    ratified by the Committee,



 



    (D) subject to any applicable limitations on Incentive
    Stock Options, if the Participant has suffered a disability,
    permitted transfers or exercises on behalf of the Participant by
    his or her legal representative, or



 



    (E) the authorization by the Committee of “cashless
    exercise” procedures with third parties who provide
    financing for the purpose of (or who otherwise facilitate) the
    exercise of awards consistent with applicable laws and the
    express authorization of the Committee.



 



    7. Options.  Subject to the
    provisions of the Plan, the Committee may grant Options, which
    Options shall be evidenced by an Award Agreement in such form as
    the Committee shall from time to time approve. Options shall
    comply with and be subject to the following terms and conditions:



 



    (a) Identification of Options.  All
    Options granted under the Plan that are Incentive Stock Options
    shall be clearly identified in the applicable Award Agreement as
    Incentive Stock Options. Any Options not so identified shall be
    deemed to be Non-Qualified Stock Options.



 



    (b) Exercise Price.  The exercise
    price of any Non-Qualified Stock Option granted under the Plan
    shall be such price as the Committee shall determine on the date
    on which such Non-Qualified Stock Option is granted; provided,
    that such price may not be less than the 100% of the Fair Market
    Value of Common Shares on the date on which such Non-Qualified
    Stock Option is granted. The exercise price of any Incentive
    Stock Option granted under the Plan shall be not less than 100%
    of the Fair Market Value of Common Shares on the date on which
    such Incentive Stock Option is granted.





    
8








 







    (c) Term and Exercise of Option



 



    (1) Each Option shall be exercisable on such date or dates,
    during such period and for such number of Common Shares as shall
    be determined by the Committee on the date on which such Option
    is granted and set forth in the applicable Award Agreement;
    provided, however, that no Option shall be exercisable after the
    expiration of ten years from the date such Option was granted;
    and, provided, further, that each Option shall be subject to
    earlier termination, expiration or cancellation as provided in
    the Plan or the applicable Award Agreement.



 



    (2) An Option shall be exercised by delivering notice to
    the Company’s principal office, to the attention of its
    Secretary, no less than one business day in advance of the
    effective date of the proposed exercise. Such notice shall be
    accompanied by the applicable Award Agreement, shall specify the
    number of Common Shares with respect to which the Option is
    being exercised and the effective date of the proposed exercise
    and shall be signed by the Participant. The Participant may
    withdraw such notice at any time prior to the close of business
    on the business day immediately preceding the effective date of
    the proposed exercise, in which case such Award Agreement shall
    be returned to Participant. Payment for Common Shares purchased
    upon the exercise of an Option shall be made on the effective
    date of such exercise either in cash or such other method
    permitted by the Committee consistent with Section 6(e).



 



    (d) Additional Rules Applicable to Incentive
    Stock Options



 



    (1) The aggregate Fair Market Value of Common Shares with
    respect to which Incentive Stock Options are exercisable for the
    first time by a Participant during any calendar year under the
    Plan and any other stock option plan of the Company shall not
    exceed $100,000. Such Fair Market Value shall be determined as
    of the date on which each such Incentive Stock Option is
    granted. In the event that the aggregate Fair Market Value of
    Common Shares with respect to such Incentive Stock Options
    exceeds $100,000, then Incentive Stock Options granted hereunder
    to such Participant shall, to the extent and in the order
    required by Regulations promulgated under the Code (or any other
    authority having the force of Regulations), automatically be
    deemed to be Non-Qualified Stock Options, but all other terms
    and provisions of such Incentive Stock Options shall remain
    unchanged. In the absence of such Regulations (and authority),
    or in the event such Regulations (or authority) require or
    permit a designation of the Options which shall cease to
    constitute incentive stock options, Incentive Stock Options
    shall, to the extent of such excess and in the order in which
    they were granted, automatically be deemed to be Non-Qualified
    Stock Options, but all other terms and provisions of such
    Incentive Stock Options shall remain unchanged.



 



    (2) Incentive Stock Options may only be granted to
    employees of the Company or one of its subsidiaries (for this
    purpose, the term “subsidiary” is used as defined in
    Section 424(f) of the Code, which generally requires an
    unbroken chain of ownership of at least 50% of the total
    combined voting power of all classes of stock of each subsidiary
    in the chain beginning with the Company and ending with the
    subsidiary in question). There shall be imposed in any Award
    Agreement relating to Incentive Stock Options such other terms
    and conditions as from time to time are required in order that
    the Option be an “incentive stock option” as that term
    is defined in Section 422 of the Code.



 



    (3) No Incentive Stock Option may be granted to an
    individual if, at the time of the proposed grant, such
    individual owns stock possessing more than ten percent of the
    total combined voting power of all classes of stock of the
    Company or any of its “subsidiaries” (within the
    meaning of Section 425 of the Code), unless (i) the
    exercise price of such Incentive Stock Option is at least one
    hundred and ten percent of the Fair Market Value of a Common
    Share at the time such Incentive Stock Option is granted and
    (ii) such Incentive Stock Option is not exercisable after
    the expiration of five years from the date such Incentive Stock
    Option is granted.



 



    8. Stock Appreciation Rights.  SARs
    to receive Common Stock (or, at the discretion of the Committee,
    an equivalent amount of cash) equal to the excess of the Fair
    Market Value of Common Shares on the date the rights are
    surrendered over the Fair Market Value of Common Shares on the
    date of grant may be granted to any Eligible Person selected by
    the Committee. A SAR may be granted (i) in connection and
    simultaneously with the grant of another award, (ii) with
    respect to a previously granted award, or (iii) independent
    of another award. A SAR shall be






    
9








 







    subject to such terms and conditions not inconsistent with this
    Plan as the Committee shall impose and shall be evidenced by a
    written Award Agreement. The maximum term of a SAR shall be ten
    years.



 



    9. Restricted Stock.  Subject to
    the provisions of the Plan, the Committee may grant shares of
    Restricted Stock. Each grant of shares of Restricted Stock shall
    be evidenced by an Award Agreement in such form as the Committee
    shall from time to time approve. Each grant of shares of
    Restricted Stock shall comply with and be subject to the
    following terms and conditions:



 



    (a) Issue Date and Vesting
    Date.  At the time of the grant of shares of
    Restricted Stock, the Committee shall establish an Issue Date(s)
    and a Vesting Date(s) with respect to such shares of Restricted
    Stock. The Committee may divide Restricted Stock into classes
    and assign a different Issue Date
    and/or
    Vesting Date for each class. Except as provided in
    Section 6(f), upon an Issue Date with respect to a share of
    Restricted Stock, a share of Restricted Stock shall be issued in
    accordance with the provisions of Section 9(c). Provided
    that all conditions to the vesting of a share of Restricted
    Stock imposed pursuant to Section 9(b) are satisfied, and
    except as provided in Section 6(f), upon the occurrence of
    the Vesting Date with respect to a share of Restricted Stock,
    such share of Restricted Stock shall vest.



 



    (b) Vesting.  At the time of the
    grant of shares of Restricted Stock, the Committee may impose
    such restrictions or conditions, not inconsistent with the
    provisions hereof, to the vesting of such shares of Restricted
    Stock as it, in its absolute discretion, deems appropriate. By
    way of example and not by way of limitation, the Committee may
    require, as a condition to the vesting of any class or classes
    of shares of Restricted Stock, that the Participant or the
    Company achieve certain performance criteria, the Common Shares
    attain certain stock price or prices, or such other criteria to
    be specified by the Committee at the time of the grant of such
    shares in the applicable Award Agreement.



 



    (c) Issuance of Certificates.



 



    (1) Except as provided in Section 6(f), reasonably
    promptly after the Issue Date with respect to shares of
    Restricted Stock, the Company shall cause to be issued a stock
    certificate, registered in the name of the Participant to whom
    such shares were granted, evidencing such shares; provided, that
    the Company shall not cause to be issued such a stock
    certificate unless it has received a stock power duly endorsed
    in blank with respect to such shares. Each stock certificate
    representing unvested shares of Restricted Stock shall bear the
    following legend:



 



    THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF
    STOCK REPRESENTED HEREBY IS SUBJECT TO THE RESTRICTIONS, TERMS
    AND CONDITIONS (INCLUDING FORFEITURE AND RESTRICTIONS AGAINST
    TRANSFER) CONTAINED IN THE DELTA PETROLEUM CORPORATION 2009
    PERFORMANCE & EQUITY INCENTIVE PLAN AND AN AWARD
    AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER OF SUCH
    SHARES AND DELTA PETROLEUM CORPORATION. A COPY OF THE PLAN
    AND AGREEMENT IS ON FILE IN THE OFFICE OF THE SECRETARY OF DELTA
    PETROLEUM CORPORATION. SUCH LEGEND SHALL NOT BE REMOVED FROM THE
    CERTIFICATE EVIDENCING SUCH SHARES UNTIL SUCH
    SHARES VEST PURSUANT TO THE TERMS HEREOF.”



 



    (2) Each certificate issued pursuant to
    Section 9(c)(1) hereof, together with the stock powers
    relating to the shares of Restricted Stock evidenced by such
    certificate, shall be deposited by the Company with a custodian
    designated by the Company. The Company shall cause such
    custodian to issue to the Participant a receipt evidencing the
    certificates held by it which are registered in the name of the
    Participant.



 



    (d) Dividends and Splits.  As a
    condition to the grant of an award of Restricted Stock, the
    Committee may require or permit a Participant to elect that any
    cash dividends paid on a share of Restricted Stock be
    automatically reinvested in additional shares of Restricted
    Stock or applied to the purchase of additional awards under this
    Plan. Unless otherwise determined by the Committee, stock
    distributed in connection with a stock split or stock dividend,
    and other property distributed as a dividend, shall be subject
    to restrictions and a risk of forfeiture to the same extent as
    the Restricted Stock with respect to which such stock or other
    property has been distributed.





    
10








 







    (e) Consequences Upon
    Vesting.  Upon the vesting of a share of
    Restricted Stock pursuant to the terms hereof, the vesting
    restrictions shall cease to apply to such share. Reasonably
    promptly after a share of Restricted Stock vests pursuant to the
    terms hereof, the Company shall cause to be issued and delivered
    to the Participant to whom such shares were granted, a
    certificate evidencing such Common Shares, free of the legend
    set forth in Section 9(c)(1) hereof, together with any
    other property of the Participant held by the custodian pursuant
    to Section 9(c) hereof.



 



    10. Restricted Stock Units.



 



    (a) Grant of Restricted Stock
    Units.  An award of RSUs may be subject to the
    attainment of specified performance goals or targets,
    forfeitability provisions and such other terms and conditions as
    the Committee may determine, subject to the provisions of this
    Plan. At the time an award of RSUs is made, the Committee shall
    establish a period of time during which the RSUs shall vest.



 



    (b) Dividend Equivalent
    Accounts.  If (and only if) required by the
    applicable Award Agreement, prior to the expiration of the
    applicable vesting period of an RSU, the Company shall pay
    dividend equivalent rights with respect to RSUs, in which case,
    the Company shall establish an account for the Participant and
    reflect in that account any securities, cash or other property
    comprising any dividend or property distribution with respect to
    the Common Shares underlying each RSU. Each amount or other
    property credited to any such account shall be subject to the
    same vesting conditions as the RSU to which it relates. The
    Participant shall be paid the amounts or other property credited
    to such account upon vesting of the RSU.



 



    (c) Rights as a
    Stockholder.  Subject to the restrictions
    imposed under the terms and conditions of this Plan and the
    applicable Award Agreement, each Participant receiving RSUs
    shall have no rights as a stockholder with respect to such RSUs
    until such time as Common Shares are issued to the Participant.
    Except as otherwise provided in the applicable Award Agreement,
    Common Shares issuable under an RSU shall be treated as issued
    on the first date that the holder of the RSU is no longer
    subject to a substantial risk of forfeiture as determined for
    purposes of Section 409A of the Code, and the holder shall
    be the owner of such Common Shares on such date. An Award
    Agreement may provide that issuance of Common Shares under an
    RSU may be deferred beyond the first date that the RSU is no
    longer subject to a substantial risk of forfeiture, provided
    that such deferral is structured in a manner that is intended to
    comply with the requirements of Section 409A of the Code.



 



    11. Phantom Stock.  Subject to the
    provisions of the Plan, the Committee may grant shares of
    Phantom Stock. Each grant of shares of Phantom Stock shall be
    evidenced by an Award Agreement in such form as the Committee
    shall from time to time approve. Each grant of shares of Phantom
    Stock shall comply with and be subject to the following terms
    and conditions:



 



    (a) Vesting.  At the time of the
    grant of shares of Phantom Stock, the Committee shall establish
    a Vesting Date(s) with respect to such shares. The Committee may
    divide such shares into classes and assign a different Vesting
    Date for each class. Provided that all conditions to the vesting
    of a share of Phantom Stock imposed pursuant to
    Section 11(c) hereof are satisfied, and except as provided
    in Section 6(f), upon the occurrence of the Vesting Date
    with respect to a share of Phantom Stock, such share shall vest.



 



    (b) Benefit Upon Vesting.  Upon the
    vesting of a share of Phantom Stock, a Participant shall be
    entitled to receive in cash, within 30 days of the date on
    which such share vests, an amount in cash in a lump sum equal to
    the sum of (i) the Fair Market Value of a Common Share of
    the Company on the date on which such share of Phantom Stock
    vests and (ii) the aggregate amount of cash dividends paid
    with respect to a Common Share of the Company, if any, during
    the period commencing on the date on which the share of Phantom
    Stock was granted and terminating on the date on which such
    share vests.



 



    (c) Conditions to Vesting.  At the
    time of the grant of shares of Phantom Stock, the Committee may
    impose such restrictions or conditions, not inconsistent with
    the provisions hereof, to the vesting of such shares as it, in
    its absolute discretion, deems appropriate. By way of example
    and not by way of limitation, the Committee may require, as a
    condition to the vesting of any class or classes of shares of
    Phantom Stock, that the Participant or the Company achieve
    certain performance criteria, such criteria to be specified by
    the Committee at the time of the grant of such shares.





    
11








 







    12. Stock Bonuses.  Subject to the
    provisions of the Plan, the Committee may grant Stock Bonuses in
    such amounts as it shall determine from time to time. A Stock
    Bonus shall be paid at such time and subject to such conditions
    as the Committee shall determine at the time of the grant of
    such Stock Bonus. Certificates for Common Shares granted as a
    Stock Bonus shall be issued in the name of the Participant to
    whom such grant was made and delivered to such Participant as
    soon as practicable after the date on which such Stock Bonus is
    required to be paid.



 



    13. Cash Bonuses.  Subject to the
    provisions of the Plan, the Committee may grant a cash bonus in
    such amounts as it shall determine from time to time. A Cash
    Bonus shall be paid at such time and subject to such conditions
    as the Committee shall determine at the time of the grant of
    such Cash Bonus.



 



    14. Effect of Termination of Service on
    Awards.



 



    (a) Termination of Employment.



 



    (1) The Committee shall establish the effect of a
    termination of employment or service on the rights and benefits
    under each award under this Plan and in so doing may make
    distinctions based upon, inter alia, the cause of termination
    and type of award. If the Participant is not an employee of the
    Company or one of its Subsidiaries and provides other services
    to the Company or one of its Subsidiaries, the Committee shall
    be the sole judge for purposes of this Plan (unless a contract
    or the Award Agreement otherwise provides) of whether the
    Participant continues to render services to the Company or one
    of its Subsidiaries and the date, if any, upon which such
    services shall be deemed to have terminated.



 



    (2) For awards of Options, unless the Award Agreement
    provides otherwise, the exercise period of such Options shall
    expire: (1) 3 months after the last day that the
    Participant is employed by or provides services to the Company
    or a Subsidiary; (2) in the case of a Participant whose
    termination of employment is due to death, 12 months after
    the last day that the Participant is employed by or provides
    services to the Company or a Subsidiary; (3); in the case of a
    Participant whose termination of employment is due to disability
    (as defined in the applicable Award Agreement), 12 months
    after the last day that the Participant is employed by or
    provides services to the Company or a Subsidiary; and
    (4) immediately upon the last day the Participant is
    employed by or provides services to the Company or a Subsidiary
    for any Participant whose employment or services are terminated
    for “cause” (as defined in the applicable Award
    Agreement). The Committee will, in its absolute discretion,
    determine the effect of all matters and questions relating to a
    termination of employment, including, but not by way of
    limitation, the question of whether a leave of absence
    constitutes a termination of employment and whether a
    Participant’s termination is for “cause.”



 



    (3) For awards of Restricted Stock, unless the Award
    Agreement provides otherwise, Restricted Stock that is subject
    to restrictions at the time that a Participant whose employment
    or service is terminated shall be forfeited and reacquired by
    the Company; provided that the Committee may provide, by rule or
    regulation or in any Award Agreement, or may determine in any
    individual case, that restrictions or forfeiture conditions
    relating to Restricted Stock shall be waived in whole or in part
    in the event of terminations resulting from specified causes,
    and the Committee may in other cases waive in whole or in part
    the forfeiture of Restricted Stock.



 



    (b) Events Not Deemed Terminations of
    Service.  Unless the express policy of the
    Company or one of its Subsidiaries, or the Committee, otherwise
    provides, the employment relationship shall not be considered
    terminated in the case of (a) sick leave, (b) military
    leave, or (c) any other leave of absence authorized by the
    Company or one of its Subsidiaries, or the Committee; provided
    that unless reemployment upon the expiration of such leave is
    guaranteed by contract or law, such leave is for a period of not
    more than 3 months. In the case of any employee of the
    Company or one of its Subsidiaries on an approved leave of
    absence, continued vesting of the award while on leave from the
    employ of the Company or one of its Subsidiaries may be
    suspended until the employee returns to service, unless the
    Committee otherwise provides or applicable law otherwise
    requires. In no event shall an award be exercised after the
    expiration of the term set forth in the Award Agreement.



 



    (c) Effect of Change of Subsidiary
    Status.  For purposes of this Plan and any
    award, if an entity ceases to be a Subsidiary of the Company, a
    termination of employment or service shall be deemed to have
    occurred with respect to each Eligible Person in respect of such
    Subsidiary who does not continue as an Eligible Person in
    respect of another entity within the Company or another
    Subsidiary that continues as such after giving effect to the
    transaction or other event giving rise to the change in status.





    
12








 







    15. No Special Employment Rights; No Right to
    Award.



 



    Nothing contained in the Plan or any award shall confer upon any
    Participant any right with respect to the continuation of
    Participant’s employment by the Company or interfere in any
    way with the right of the Company, subject to the terms of any
    separate employment agreement to the contrary, at any time to
    terminate such employment or to increase or decrease the
    compensation of the Participant from the rate in existence at
    the time of the grant of an award.



 



    No person shall have any claim or right to receive an award
    hereunder. The Committee’s granting of an award to a
    Participant at any time shall neither require the Committee to
    grant an award to such Participant or any other Participant or
    other person at any time nor preclude the Committee from making
    subsequent grants to such Participant or any other Participant
    or other person.



 



    16. Adjustments; Acceleration.



 



    (a) Adjustments.  Except where the
    Committee determines that the provisions of Section 16(c)
    shall govern in lieu of this Section 16(a), upon any of the
    events described in this Section 16(a), or in contemplation
    of: any reclassification, recapitalization, stock split
    (including a stock split in the form of a stock dividend) or
    reverse stock split (“stock split”); any merger,
    combination, consolidation, or other reorganization; any
    spin-off,
    split-up, or
    similar extraordinary dividend distribution in respect of the
    Common Shares (whether in the form of securities or property);
    any exchange of Common Shares or other securities of the
    Company, or any similar, unusual or extraordinary corporate
    transaction in respect of Common Shares; or a sale of all or
    substantially all the business or assets of the Company as an
    entirety; then the Committee shall in such manner, to such
    extent (if any) and at such time as it deems appropriate and
    equitable in the circumstances:



 



    (1) proportionately adjust any or all of (1) the
    number and type of Common Shares (or other securities) that
    thereafter may be made the subject of awards (including the
    number of shares provided for in this Plan), (2) the
    number, amount and type of Common Shares (or other securities or
    property) subject to any or all outstanding awards, (3) the
    grant, purchase, or exercise price (which term includes the base
    price of any SAR or similar right) of any or all outstanding
    awards, (4) the securities, cash or other property
    deliverable upon exercise or payment of any outstanding awards,
    or (5) (subject to Sections 16(g) and 22(a)) the
    performance standards applicable to any outstanding awards
    (provided that no adjustment shall be allowed to the extent
    inconsistent with the requirements of Code
    section 162(m)), or



 



    (2) make provision for a cash payment or for the
    assumption, substitution or exchange of any or all outstanding
    share-based awards or the cash, securities or property
    deliverable to the holder of any or all outstanding share-based
    awards, based upon the distribution or consideration payable to
    holders of Common Shares upon or in respect of such event.



 



    The Committee may adopt such valuation methodologies for
    outstanding awards as it deems reasonable in the event of a cash
    or property settlement and, in the case of Options, SARs or
    similar rights, but without limitation on other methodologies,
    may base such settlement solely upon the excess if any of the
    per share amount payable upon or in respect of such event over
    the exercise or base price of the award. With respect to any
    award of an Incentive Stock Option, the Committee may make such
    an adjustment that causes the Option to cease to qualify as an
    Incentive Stock Option without the consent of the affected
    Participant.



 



    In any of such events, the Committee may take such action prior
    to such event to the extent that the Committee deems the action
    necessary to permit the Participant to realize the benefits
    intended to be conveyed with respect to the underlying shares in
    the same manner as is or will be available to stockholders
    generally. In the case of any stock split, if no action is taken
    by the Committee, the proportionate adjustments contemplated by
    clause (1) above shall nevertheless be made.



 



    Any adjustment, substitution or exchange made pursuant to this
    Section 16(a) shall be made in a manner that, in the good
    faith determination of the Committee, will not likely result in
    the imposition of additional taxes or interest under
    Section 409A of the Code.



 



    (b) Automatic Acceleration of
    Awards.  Except as otherwise provided in
    Section 16(c), upon a dissolution of the Company or other
    event described in Section 16(a) that the Company does not
    survive (or does not survive as a






    
13








 







    public company in respect of its Common Shares), then each
    then-outstanding Option and SAR shall become fully vested, all
    shares of Restricted Stock then outstanding shall fully vest
    free of restrictions, and each other award granted under this
    Plan that is then outstanding shall become payable to the holder
    of such award; provided that such acceleration provision shall
    not apply, unless otherwise expressly provided by the Committee,
    with respect to any award to the extent that the Committee has
    made a provision for the substitution, assumption, exchange or
    other continuation or settlement of the award, or the award
    would otherwise continue in accordance with its terms, in the
    circumstances; provided, further, that no such acceleration of
    amounts payable shall apply to compensation that has been
    deferred for purposes of Section 409A unless the Committee
    determines that the acceleration will not result in the
    imposition of additional taxes or interest under
    Section 409A.



 



    (c) Change in Control.  In the
    applicable Award Agreement or by other action, the Committee, in
    its discretion, may provide that any outstanding Option or SAR
    shall become fully vested, any share of Restricted Stock then
    outstanding shall fully vest free of restrictions, and any other
    award granted under this Plan that is then outstanding shall
    vest, or be payable to the holder of such award, as applicable,
    upon the occurrence of a Change in Control. Notwithstanding the
    foregoing, no compensation that has been deferred for purposes
    of Section 409A of the Code shall be payable as a result of
    a Change in Control unless the Change in Control qualifies as a
    change in ownership or effective control of the Company within
    the meaning of Section 409A of the Code.



 



    (d) Early Termination of
    Awards.  Any award that has been accelerated
    as required or contemplated by Section 16(b) or 16(c) (or
    would have been so accelerated but for Section 16(e), 16(f)
    or 16(g)) shall terminate upon the related event referred to in
    Section 16(b) or 16(c), as applicable, subject to any
    provision that has been expressly made by the Committee, through
    a plan of reorganization or otherwise, for the survival,
    substitution, assumption, exchange or other continuation or
    settlement of such award and provided that, in the case of
    Options and SARs that will not survive, be substituted for,
    assumed, exchanged, or otherwise continued or settled in the
    transaction, the holder of such award shall be given reasonable
    advance notice of the impending termination and a reasonable
    opportunity to exercise his or her outstanding Options and SARs
    in accordance with their terms before the termination of such
    awards (except that in no case shall more than ten days’
    notice of accelerated vesting and the impending termination be
    required and any acceleration may be made contingent upon the
    actual occurrence of the event).



 



    (e) Other Acceleration Rules.  Any
    acceleration of awards pursuant to this Section 16 shall
    comply with applicable legal requirements and, if necessary to
    accomplish the purposes of the acceleration or if the
    circumstances require, may be deemed by the Committee to occur a
    limited period of time not greater than 30 days before the
    event. Without limiting the generality of the foregoing, the
    Committee may deem an acceleration to occur immediately prior to
    the applicable event
    and/or
    reinstate the original terms of an award if an event giving rise
    to an acceleration does not occur. Notwithstanding any other
    provision of the Plan to the contrary, the Committee may
    override the provisions of Section 16(b), 16(c), 16(d)
    and/or 16(f)
    by express provision in the Award Agreement or otherwise. In
    addition, the Committee may accord any Eligible Person a right
    to refuse any acceleration, whether pursuant to the Award
    Agreement or otherwise, in such circumstances as the Committee
    may approve. The portion of any Incentive Stock Option
    accelerated pursuant to Section 16(c) or any other action
    permitted hereunder shall remain exercisable as an Incentive
    Stock Option only to the extent the applicable $100,000
    limitation on Incentive Stock Options is not exceeded. To the
    extent exceeded, the accelerated portion of the Option shall be
    exercisable as a Non-Qualified Stock Option under the Code.



 



    (f) Possible Rescission of
    Acceleration.  If the vesting of an award has
    been accelerated expressly in anticipation of an event or upon
    stockholder approval of an event and the Committee later
    determines that the event will not occur, the Committee may
    rescind the effect of the acceleration as to any then
    outstanding and unexercised or otherwise unvested awards;
    provided that, in the case of any compensation that has been
    deferred for purposes of Section 409A of the Code, the
    Committee determines that such rescission will not likely result
    in the imposition of additional tax or interest under Code
    Section 409A.



 



    (g) Golden Parachute
    Limitation.  Notwithstanding anything else
    contained in this Section 16 to the contrary, in no event
    shall an award be accelerated under this Plan to an extent or in
    a manner which would not be fully deductible by the Company or
    one of its Subsidiaries for federal income tax purposes because
    of Section 280G of the Code, nor shall any payment
    hereunder be accelerated to the extent any portion of such






    
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    accelerated payment would not be deductible by the Company or
    one of its Subsidiaries because of Section 280G of the
    Code. If a Participant would be entitled to benefits or payments
    hereunder and under any other plan or program that would
    constitute “parachute payments” as defined in
    Section 280G of the Code, then the Participant may by
    written notice to the Company designate the order in which such
    parachute payments will be reduced or modified so that the
    Company or one of its Subsidiaries is not denied federal income
    tax deductions for any “parachute payments” because of
    Section 280G of the Code. Notwithstanding the foregoing, if
    a Participant is a party to an employment or other agreement
    with the Company or one of its Subsidiaries, or is a Participant
    in a severance program sponsored by the Company or one of its
    Subsidiaries, that contains express provisions regarding
    Section 280G
    and/or
    Section 4999 of the Code (or any similar successor
    provision), the Section 280G
    and/or
    Section 4999 provisions of such employment or other
    agreement or plan, as applicable, shall control as to any awards
    held by that Participant (for example, and without limitation, a
    Participant may be a party to an employment agreement with the
    Company or one of its Subsidiaries that provides for a
    “gross-up”
    as opposed to a “cut-back” in the event that the
    Section 280G thresholds are reached or exceeded in
    connection with a change in control and, in such event, the
    Section 280G
    and/or
    Section 4999 provisions of such employment agreement shall
    control as to any awards held by that Participant).



 



    17. Securities Matters



 



    (a) Notwithstanding anything herein to the contrary, the
    Company shall not be obligated to cause to be issued or
    delivered any certificates evidencing Common Shares pursuant to
    the Plan unless and until the Company is advised by its counsel
    that the issuance and delivery of such certificates is in
    compliance with all applicable laws, regulations of governmental
    authority and the requirements of any securities exchange on
    which Common Shares are traded. The Committee may require, as a
    condition of the issuance and delivery of certificates
    evidencing Common Shares pursuant to the terms hereof, that the
    recipient of such shares make such covenants, agreements and
    representations, and that such certificates bear such legends,
    as the Committee, in its sole discretion, deems necessary or
    desirable.



 



    (b) The exercise of any Option granted hereunder shall only
    be effective at such time as counsel to the Company shall have
    determined that the issuance and delivery of Common Shares
    pursuant to such exercise is in compliance with all applicable
    laws, regulations of governmental authority and the requirements
    of any securities exchange on which Common Shares are traded.
    The Company may, in its sole discretion, defer the effectiveness
    of any exercise of an Option granted hereunder in order to allow
    the issuance of Common Shares pursuant thereto to be made
    pursuant to registration or an exemption from the registration
    or other methods for compliance available under federal or state
    securities laws. The Company shall inform the Participant in
    writing of its decision to defer the effectiveness of the
    exercise of an Option granted hereunder. During the period that
    the effectiveness of the exercise of an Option has been
    deferred, the Participant may, by written notice, withdraw such
    exercise and obtain the refund of any amount paid with respect
    thereto.



 



    (c) With respect to persons subject to Section 16 of
    the Exchange Act, transactions under this Plan are intended to
    comply with all applicable conditions of
    Rule 16b-3
    or its successors under the Exchange Act. To the extent any
    provision of the Plan, the grant of an award, or action by the
    Committee fails to so comply, it shall be deemed null and void,
    to the extent permitted by law and deemed advisable by the
    Committee.



 



    18. Withholding Obligation.  The
    Company may in its sole discretion, satisfy any federal, state
    or local tax withholding obligation relating to an award by any
    of the following means (in addition to the Company’s right
    to withhold from any compensation paid to the Participant by the
    Company) or by a combination of such means: (i) causing the
    Participant to tender a cash payment; (ii) withholding
    shares of Common Shares from the Common Shares Stock issued
    or otherwise issuable to the Participant in connection with the
    award; or (iii) by such other method as may be set forth in
    the applicable Award Agreement.



 



    19. No Obligation to Exercise.  The
    grant to a Participant of an Option, SAR or other award shall
    impose no obligation upon such Participant to exercise such
    award.



 



    20. Expenses and Receipts.  The
    expenses of the Plan shall be paid by the Company. Any proceeds
    received by the Company in connection with any award will be
    used for general corporate purposes.





    
15








 







    21. Suspension or Termination of
    Award.  In addition to the remedies of the
    Company elsewhere provided for herein, failure by a Participant
    to comply with any of the terms and conditions of the Plan or
    the Award Agreement executed by such Participant evidencing an
    award, unless such failure is remedied by such Participant
    within ten days after having been notified of such failure by
    the Committee, shall be grounds for the cancellation and
    forfeiture of such award, in whole or in part, as the Committee
    may determine.



 



    22. Plan Construction.



 



    (a) Rule 16b-3.  It
    is the intent of the Company that the awards and transactions
    permitted by awards be interpreted in a manner that, in the case
    of Participants who are or may be subject to Section 16 of
    the Exchange Act, qualify, to the maximum extent compatible with
    the express terms of the award, for exemption from matching
    liability under
    Rule 16b-3
    promulgated under the Exchange Act. Notwithstanding the
    foregoing, the Company shall have no liability to any
    Participant for Section 16 consequences of awards or events
    under awards if an award or event does not so qualify.



 



    (b) Section 162(m).  Awards
    under 6(a)(iii) through 6(a)(viii) to persons described in
    Section 6(b) that are either granted or become vested,
    exercisable or payable based on attainment of one or more
    performance goals related to the Business Criteria, as well as
    Qualifying Options and Qualifying SARs granted to persons
    described in Section 6(b), that are approved by a committee
    composed solely of two or more outside directors (as this
    requirement is applied under Section 162(m) of the Code)
    shall be deemed to be intended as performance-based compensation
    within the meaning of Section 162(m) of the Code unless
    such committee provides otherwise at the time of grant of the
    award. It is the further intent of the Company that (to the
    extent the Company or one of its Subsidiaries or awards under
    this Plan may be or become subject to limitations on
    deductibility under Section 162(m) of the Code) any such
    awards and any other Performance-Based Awards under
    Section 6(b) that are granted to or held by a person
    subject to Section 162(m) will qualify as performance-based
    compensation or otherwise be exempt from deductibility
    limitations under Section 162(m).



 



    (c) Code Section 409A
    Compliance.  The Board intends that, except as
    may be otherwise determined by the Committee, any awards under
    the Plan are either exempt from or satisfy the requirements of
    Section 409A of the Code and related regulations and
    Treasury pronouncements (“Section 409A”)
    to avoid the imposition of any taxes, including additional
    income or penalty taxes, thereunder. If the Committee determines
    that an award, Award Agreement, acceleration, adjustment to the
    terms of an award, payment, distribution, deferral election,
    transaction or any other action or arrangement contemplated by
    the provisions of the Plan would, if undertaken, cause a
    Participant’s award to become subject to Section 409A,
    unless the Committee expressly determines otherwise, such award,
    Award Agreement, payment, acceleration, adjustment,
    distribution, deferral election, transaction or other action or
    arrangement shall not be undertaken and the related provisions
    of the Plan
    and/or Award
    Agreement will be deemed modified or, if necessary, rescinded in
    order to comply with the requirements of Section 409A to
    the extent determined by the Committee without the content or
    notice to the Participant.



 



    (d) No Guarantee of Favorable Tax
    Treatment.  Although the Company intends that
    awards under the Plan will be exempt from, or will comply with,
    the requirements of Section 409A of the Code, the Company
    does not warrant that any award under the Plan will qualify for
    favorable tax treatment under Section 409A of the Code or
    any other provision of federal, state, local or foreign law. The
    Company shall not be liable to any Participant for any tax,
    interest or penalties the Participant might owe as a result of
    the grant, holding, vesting, exercise or payment of any award
    under the Plan.



 



    23. Effective Date, Termination and Suspension,
    Amendments.



 



    (a) Effective Date of Plan.  This
    Plan is effective as of July 30, 2009, the date of its
    approval by the Board (the “Effective Date”).
    This Plan shall be submitted for and subject to stockholder
    approval no later than twelve months after the Effective Date.
    Unless earlier terminated by the Board, this Plan shall
    terminate at the close of business on the day before the tenth
    anniversary of the Effective Date. After the termination of this
    Plan either upon such stated expiration date or its earlier
    termination by the Board, no additional awards may be granted
    under this Plan, but previously granted awards (and the
    authority of the Committee with respect thereto, including the
    authority to amend such awards) shall remain outstanding in
    accordance with their applicable terms and conditions and the
    terms and conditions of this Plan.



 



    (b) Board Authorization.  The Board
    may, at any time, terminate or, from time to time, amend, modify
    or suspend this Plan, in whole or in part. No awards may be
    granted during any period that the Board suspends this Plan.





    
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    (c) Stockholder Approval.  To the
    extent then required by applicable law or any applicable listing
    agency or required under Sections 162, 422 or 424 of the
    Code to preserve the intended tax consequences of this Plan, or
    deemed necessary or advisable by the Board, any amendment to
    this Plan shall be subject to stockholder approval.



 



    (d) Amendments to Awards.  Without
    limiting any other express authority of the Committee under (but
    subject to) the express limits of this Plan, the Committee by
    agreement or resolution may waive conditions of or limitations
    on awards to Participants that the Committee in the prior
    exercise of its discretion has imposed, without the consent of a
    Participant, and (subject to the requirements of
    Sections 4(b) and 23(e)) may make other changes to the
    terms and conditions of awards. Any amendment or other action
    that would constitute a repricing of an award is subject to the
    limitations set forth in Section 4(b)(7).



 



    (e) Limitations on Amendments to Plan and
    Awards.  No amendment, suspension or
    termination of this Plan or change of or affecting any
    outstanding award shall, without written consent of the
    Participant, affect in any manner materially adverse to the
    Participant any rights or benefits of the Participant or
    obligations of the Company under any award granted under this
    Plan prior to the effective date of such change. Changes,
    settlements and other actions contemplated by Section 16
    shall not be deemed to constitute changes or amendments for
    purposes of this Section 23.



 



    24. Governing Law; Severability.



 



    (a) Choice of Law.  This Plan, the
    awards, all documents evidencing awards and all other related
    documents shall be governed by, and construed in accordance with
    the laws of the State of Delaware.



 



    (b) Severability.  If a court of
    competent jurisdiction holds any provision invalid and
    unenforceable, the remaining provisions of this Plan shall
    continue in effect.



 



    25. Stock-Based Awards in Substitution for Stock
    Options or Awards Granted by Other
    Company.  Awards may be granted to Eligible
    Persons in substitution for or in connection with an assumption
    of Options, SARs, Restricted Stock or other stock-based awards
    granted by other entities to persons who are or who will become
    Eligible Persons in respect of the Company or one of its
    Subsidiaries, in connection with a distribution, merger or other
    reorganization by or with the granting entity or an affiliated
    entity, or the acquisition by the Company or one of its
    Subsidiaries, directly or indirectly, of all or a substantial
    part of the stock or assets of the employing entity. The awards
    so granted need not comply with other specific terms of this
    Plan, provided the awards reflect only adjustments giving effect
    to the assumption or substitution consistent with the conversion
    applicable to the Common Shares in the transaction and any
    change in the issuer of the security. Any shares that are
    delivered and any awards that are granted by, or become
    obligations of, the Company, as a result of the assumption by
    the Company of, or in substitution for, outstanding awards
    previously granted by an acquired company (or previously granted
    by a predecessor employer (or direct or indirect parent thereof)
    in the case of persons that become employed by the Company or
    one of its Subsidiaries in connection with a business or asset
    acquisition or similar transaction) shall not be counted against
    the Share Limit or other limits on the number of shares
    available for issuance under this Plan. Any adjustment,
    substitution or assumption made pursuant to this Section 25
    shall be made in a manner that, in the good faith determination
    of the Committee, will not likely result in the imposition of
    additional taxes or interest under Section 409A of the Code.



 



    26. Non-Exclusivity of
    Plan.  Nothing in this Plan shall limit or be
    deemed to limit the authority of the Board or the Committee to
    grant awards or authorize any other compensation, with or
    without reference to the Common Shares, under any other plan or
    authority.



 



    27. No Corporate Action
    Restriction.  The existence of this Plan, the
    Award Agreements and the awards granted hereunder shall not
    limit, affect or restrict in any way the right or power of the
    Board or the stockholders of the Company to make or authorize:
    (a) any adjustment, recapitalization, reorganization or
    other change in the capital structure or business of the Company
    or any Subsidiary, (b) any merger, amalgamation,
    consolidation or change in the ownership of the Company or any
    Subsidiary, (c) any issue of bonds, debentures, capital,
    preferred or prior preference stock ahead of or affecting the
    capital stock (or the rights thereof) of the Company or any
    Subsidiary, (d) any dissolution or liquidation of the
    Company or any Subsidiary, (e) any sale or transfer of all
    or any part of the assets or business of the Company or any
    Subsidiary, or (f) any other corporate act or proceeding by
    the Company or any Subsidiary. No Participant, beneficiary or
    any other person shall have any claim under any award or award
    agreement against any member of the Board or the Committee, or
    the Company or any employees, officers or agents of the Company
    or any Subsidiary, as a result of any such action.





    
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